WASHINGTON – Today, in a victory for the First Amendment, the United States Supreme Court declined to review the September 2016 decision of the First Circuit Court of Appeals striking down New Hampshire’s law banning “ballot selfies.”  In deciding not to review the First Circuit ruling, the Supreme Court has allowed that ruling to stand, which ends the case after two years of litigation. 

In a thoughtful 22-page opinion, the First Circuit unequivocally concluded that the law violates free speech rights.  As the First Circuit held: “The restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment …. Ballot selfies have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate.”  The Court added: “New Hampshire may not impose such a broad restriction on speech banning ballot selfies in order to combat an unsubstantiated and hypothetical danger.  We repeat the old adage: ‘a picture is worth a thousand words.’”

This law, which became effective on September 1, 2014, banned a person from displaying a photograph of a marked ballot reflecting “how he or she has voted,” including on the Internet through social media platforms like Twitter, Facebook, and Instagram.  Under the law, willfully engaging in this form of political speech was a violation-level offense punishable by a fine of up to $1,000.  The law contained no exceptions. 

Approximately 16 states have decades-old, pre-Internet laws on the books that arguably ban this form of online speech.  However, with this law’s passage in 2014, New Hampshire became the first state in the country to update its decades-old election laws during the Internet age with the specific intent to ban this form of online political speech.[1]

[1] On July 1, 2015, Indiana became the second state to adopt such a ban—though that ban too was deemed unconstitutional on January 19, 2017 by a federal court after a lawsuit filed by the ACLU of Indiana.  Indiana has appealed this decision to the Seventh Circuit Court of Appeals.